EN
BANC
JESUS
A. JARIOL, Municipal Mayor of
Basilisa,
Surigao del Norte;
ROMEO P. ECLEO, Vice Mayor of Basilisa,
Surigao
del Norte;
ANIANO BUSMEON, ALBERTO TUBO, JUAN
DIGAL,
JR.,
GENEROSO SAREN, ISIDRO MONESIT and
SATURNINO
LANUGON, Sangguniang Bayan Member of
Basilisa,
Surigao
del Norte,
Petitioners,
G. R. No. 127456
March 20, 1997
-versus-
THE
COMMISSION ON ELECTIONS, FELIPE A. YCOT
and
DAISY LUMAMBAS,
Respondents.
D
E C I S I O N
DAVIDE, JR. J.:
This is a
Special Civil Action for Certiorari
under Rule 65 of the Rules of Court to annul and set aside Resolution
No.
2879 of the Commission on Elections (COMELEC) of 12 December 1996,
which
adopted the calendar of activities for the recall election of the
Mayor,
Vice Mayor and six (6) members of Sangguniang Bayan of the Municipality
of Basilisa, Province of Surigao del Norte, and scheduled said recall
election
on 25 January 1997.
Petitioners, as
the officials sought to be recalled,
submit that:
1. Not all the members of the Preparatory
Recall
Assembly were notified of the meeting for the recall of said municipal
officials;
2. The notice of the meeting did not
state
the
purpose thereof, much less, that it was for the recall of the Mayor,
Vice
Mayor and six Sangguniang Bayan members;
3. The meeting was not open to the
public,
but
behind closed doors; and
4. The recall election is scheduled on
January
25, 1997, within one year immediately preceding a regular election of
barangay
officials in May, 1997.
As regards the
first, petitioners allege that seven
(7) of the twenty-seven (27) Barangay Captains of the Municipality of
Basilisa
and fifty-five (55) members of the different Sangguniang Barangays (SB)
thereof did not receive notice of the Preparatory Recall Assembly (PRA)
Meeting held on 24 August 1996 and which passed the resolution of
recall.
These 7 Barangay Captains and 55 SB members executed affidavits to this
effect which were attached to the petition.
As to the notice
of meeting, petitioners allege
that it was in the form reproduced on page 8 of the petition[1]
and carried the following heading:
ASSOCIATION OF
BARANGAY COUNCILS
Basilisa, Surigao del Norte
MUNICIPAL PREPARATORY RECALL ASSEMBLY
It did not
contain a statement of the purpose
of the meeting which was to be held in the remote barangay of Sering at
a school building located about one-half kilometer away from the
barangay
proper. The meeting was likewise held behind closed doors. Affidavits
of
witnesses to such fact were also attached to the petition.cralaw:red
Petitioners then
contend that the meeting was
held in violation of Section 70 of the Local Government Code of 1991
[R.
A. No. 7160], which reads as follows:
Sec. 74. Limitations on Recall. (a)
Any
elective local official may be the subject of a recall election only
once
during his term of office for loss of confidence.
(b) No recall shall take place within
one
(1)
year from the date of the official's assumption to office or one (1)
year
immediately preceding a regular local election.
As to the last
ground, petitioners contend that under
Section 74(b) of R. A. No. 7160, no recall should take place
within
one (1) year from the date of the official's assumption to office or
one
(1) year immediately preceding a regular local election. Under Section
43(c) of the same Code, the term of office of barangay officials and
members
of the Sangguniang Kabataan shall be for three (3) years, which shall
begin
after the regular election of barangay officials on the second Monday
of
May, 1994. Per Resolution No. 2880 of 27 December 1996, the COMELEC
stated
that the next barangay election would be on 12 May 1997 hence, no
recall
election could be done within one year immediately preceding 12 May
1997.
The recall then in this case falls within the prohibited period.
On 21 January
1997 We issued a Temporary Restraining
Order ordering the respondent COMELEC to cease and desist from
implementing
its questioned Resolution No. 2879 and directing the respondents to
Comment
on the petition within a non-extendible period of ten (10) days.cralaw:red
In its Comment
for public respondent COMELEC,
the Office of the Solicitor General alleges that per Report of the
Election
Officer of Basilisa, Surigao del Norte, the PRA meeting was attended by
109 members, a number sufficient to constitute a quorum since Basilisa
is composed of 27 barangays with eight officers for each unit. All of
the
109 "signed the minutes of the meeting as they affixed therein their
signatures
and thumbmarks signifying their assent to the assembly;" and the
COMELEC,
"(u)pon examination of the signatures and the minutes of the meeting,"
"affirmed the authenticity of the signatures and thumbmarks of the
members
of the PRA." Thereafter, the Office of the Solicitor General further
states,
the COMELEC's Deputy Executive Director for Operation "recommended to
the
Comelec en banc the holding of the recall election." Pursuant thereto,
the COMELEC en banc issued on 12 December 1996 the challenged
Resolution,
whose reconsideration petitioner never sought.cralaw:red
The Office of the
Solicitor General then urges
us to dismiss the petition because: (a) of prematurity, since
petitioners
had not asked the COMELEC to reconsider Resolution No. 2879; (b) it
raises
factual issues which are not proper subjects of a petition for
certiorari;
and (c) the barangay election on 12 May 1997 will not bar the recall
election
in question in light of our decision in Paras v. Commission on
Elections
(G.R. No. 123169, 4 November 1996) where we held that the regular
election
referred to in Section 74(b) of the Local Government Code of 1991
refers
to the election where the office held by the local elective official
sought
to be recalled will be contested and be filled by the electorate, which
is not the barangay election on 12 May 1997, but the election for
Mayor,
Vice Mayor and members of the SB in May of 1998.cralaw:red
In their Comment,
private respondents contend
that there was compliance with the requirements of due process as all
members
of the PRA were duly notified of the date and place of meeting for the
purpose of recall. The PRA of Basilisa is composed of 243 members,
representing
the total number of elected barangay officials of the 27 barangays
thereof.
They were all furnished and served with notice of said meeting, which
they
received in due time as evidenced by 243 registry receipts issued by
the
Post Office and which form part of the records in the COMELEC. Only 123
responded and attended the PRA meeting, while 114 did not respond nor
attend
the meeting, the whereabouts of 5 were unknown and 1 had earlier
resigned.cralaw:red
Private
respondents further claim that the meeting's
venue was the Sering High School building in barangay Sering, which is
definitely a public place; and that the meeting was attended by a
majority
of the barangay officials constituting the PRA, as well as Barangay
residents
of the different barangays.
Private
respondents finally claim that the instant
petition is part of a continuing scheme to unjustly prevent a recall
process.
According to them, the first meeting of the Association of Barangay
Councils
to formally organize the Municipal Preparatory Recall Assembly was set
for 5 July 1996, but had to be postponed to 9 July 1996 because
petitioner
Mayor Jariol, upon learning of it, called a meeting of barangay
officials
also on 5 July 1996. Again, on 9 July 1996, Mayor Jariol called a
meeting
of the barangay officials to prevent the latter from convening a
Municipal
PRA. Despite threats of disciplinary action by Mayor Jariol, the
barangay
officials nevertheless met, formally convened and constituted
themselves
into the Municipal Preparatory Recall Assembly. On 15 July 1996,
respondent
Felipe Ycot and 107 other barangay officials who attended the aforesaid
meeting of 9 July 1996 were administratively charged before the
Sangguniang
Bayan of Basilisa with dereliction of duty for their failure to attend
the meeting called by Mayor Jariol on 9 July 1996. Respondents therein
moved to inhibit the members of the SB, petitioners herein; but, the
motion
was peremptorily denied. A motion for reconsideration was denied on 13
September 1996. On even date the SB handed down a decision dismissing
from
office the herein private respondents with the 106 other barangay
officials.
Fortunately, on appeal to the Sangguniang Panlalawigan (SP) of Surigao
del Norte, the decision was reversed in the decision of the SP of 22
November
1996. This was followed on 2 December 1996 by the letter of the
Governor
of Surigao del Norte directing petitioner Jariol to reinstate the
barangay
officials, which Jariol refused to comply with.cralaw:red
In their Joint
(Consolidated) Reply, petitioners
reiterate their reliance on the sworn statements of 7 barangay captains
and 55 SB members that they did not receive notice of meeting, and as
to
the 243 registry receipts alleged by private respondents, petitioners
maintain
that it "is not mentioned when these registered notices were sent, from
which Post Office, and when these were received." They even claim that
"it is rather unusual that the notices were sent allegedly by
registered
mail because notices of meetings of barangay officials are normally
sent
by personal delivery."
As to whether the
notice of meeting stated a purpose
and the meeting was public or held in closed doors, petitioners
reiterated
their earlier submission and further assert that the sworn statements
of
11 persons which they attached to the petition were not traversed by
any
sworn statement.
As regards the claim of COMELEC that petitioners
should have first contested the factual findings of the PRA before the
COMELEC instead of filing this petition, petitioners allege that "they
did not have enough opportunity to do so" for the challenged resolution
was promulgated on 12 December 1996 and the recall election was
scheduled
on 25 January 1997. Further, the Resolution was first published only on
20 December 1996, and petitioners only learned of this the following
day
in Surigao City as no newspapers are circulated in Basilisa, and the
copy
of the resolution sent to petitioners was delivered to petitioner
Jariol
on or about 3 January 1997.cralaw:red
Petitioners were
silent on the charge of private
respondents that this petition was part of the former's scheme to
harass
the private respondents to unjustly prevent the recall process.cralaw:red
After due
deliberation on the arguments adduced
in the foregoing pleadings, we resolved to DISMISS this petition for
prematurity
and for petitioner's failure to sufficiently show that respondent
Commission
on Elections committed grave abuse of discretion in giving due course
to
the recall petition and in promulgating Resolution No. 2879.cralaw:red
As correctly
pointed out by the Office of the
Solicitor General, if petitioners were unsatisfied with the findings of
the COMELEC, they should have first moved for reconsideration before
filing
this special civil action for certiorari under Rule 65 of the Rules of
Court. The petitioners were fully aware of the proceedings before the
COMELEC.cralaw:red
The COMELEC
performed a purely administrative
function when it promulgated Resolution No. 2879. A party aggrieved
thereby
must not merely initiate the prescribed administrative procedure to
obtain
relief, but also must pursue it to its appropriate conclusion before
seeking
judicial intervention in order to give that administrative agency an
opportunity
to decide the matter by itself correctly and prevent unnecessary and
premature
resort to the court. [Cruz v. del Rosario, 9 SCRA 755, 758 (1963);
Manuel
v. Jimenez, 17 SCRA 55, 57 (1966)]. This is the rule on exhaustion of
administrative
remedies. A motion for reconsideration then is a pre-requisite to the
viability
of a special civil action for certiorari, unless the party who avails
of
the latter can convincingly show that his case falls under any of the
following
exceptions to the rule: (1) where the question is purely legal, (2)
where
judicial intervention is urgent, (3) where its application may cause
great
and irreparable damage, (4) where the controverted acts violate due
process,
(5) failure of a high government official from whom relief is sought to
act on the matter, and (6) when the issue for non-exhaustion of
administrative
remedies has been rendered moot. [See Severino S. Tabios, Annotation on
Failure to Exhaust Administrative Remedies As a Ground for Motion to
Dismiss,
165 SCRA 352, 357-362 (1988)].cralaw:red
In the instant
case, the only reason advanced
by petitioner was lack of "enough opportunity to do so." We disagree.
Petitioner
first learned of the promulgation of the Resolution on 21 December 1996
through the 20 December 1996 issue of the Manila Bulletin and formally
received a copy of the Resolution on 3 January 1997. They had
sufficient
time to file a motion for its reconsideration since the recall election
was scheduled on 25 January 1997. Instead of filing this petition on 6
January 1997, petitioners should have first filed a motion for
reconsideration.cralaw:red
Verily, the
principal issue in this case is focused
on the factual findings of COMELEC. Petitioners sought to disprove them
by sworn statements which they attached to the petition at bar.
Obviously,
these were not offered before the COMELEC, thus the latter could not
have
passed upon their admissibility or probative value. It cannot then be
said
that the COMELEC acted with grave abuse of discretion in ruling on the
recall on the basis of, among other things, the Report of its Municipal
Election Officer assigned in Basilisa, Surigao del Norte. The latter
has
in his favor the presumption of regularity in the performance of his
duty
[Sec. 3(m), Rule 131, Rules of Court]. Petitioners had the burden to
disprove
that presumption, which they miserably failed to do. They did not even
assail the Report nor impute any improper motive on the Election
Officer
as to create doubt as to the integrity of his Report.cralaw:red
Finally, the
scheduled barangay election on 12
May 1997 is not the regular election contemplated in Section 74(b) of
the
Local Government Code of 1991 whose conduct is the basis for computing
the one-year prohibited period. As we held in Paras v. Commission on
Elections
[supra]:
It would, therefore, be in keeping with
the
intent
of the recall provision of the Code to construe regular local election
as one referring to an election where the office held by the local
elective
official sought to be recalled could be contested and be filled by the
electorate.
Hence the
holding of the recall election in question
can be validly done at any time before the commencement of the one [1]
year period immediately preceding the next general election for
municipal
elective officials in May of 1998.
IN VIEW OF ALL
THE FOREGOING, the instant petition
is DISMISSED for lack of merit and the Temporary Restraining Order
issued
on 21 January 1997 is LIFTED. The Commission on Elections is DIRECTED
to
set anew and hold the RECALL ELECTION in question not later than 15
April
1997.
Costs against petitioners.cralaw:red
SO ORDERED.cralaw:red
Narvasa, C.J.,
Padilla, Regalado, Romero,
Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco,
Hermosisima,
Jr., Panganiban and Torres, Jr., JJ., concur.
________________________
Endnote
[1]The body is
written in the Cebuano dialect.
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